Summary
dismissing prima facie tort claim where the conduct was motivated by a desire to undermine a business competitor
Summary of this case from Colonial Funding Network, Inc. v. Epazz, Inc.Opinion
2014-03-4
AREP FIFTY–SEVENTH, LLC, Plaintiff–Appellant, v. PMGP ASSOCIATES, L.P., et al., Defendants–Respondents.
Quinn McCabe LLP, New York (Todd J. DeSimone of counsel), for appellant. Olshan Frome & Wolosky, New York (Alexander Ferrini, III of counsel), for respondents.
Quinn McCabe LLP, New York (Todd J. DeSimone of counsel), for appellant. Olshan Frome & Wolosky, New York (Alexander Ferrini, III of counsel), for respondents.
TOM, J.P., ANDRIAS, SAXE, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 20, 2012, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for tortious interference with contract and prima facie tort pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.
The motion court correctly dismissed the tortious interference with contract claim. To establish a claim of tortious interference with contract, “the plaintiff must show the existence of its valid contract with a third party, defendant's knowledge of that contract, defendant's intentional and improper procuring of a breach, and damages” ( White Plains Coat & Apron Co. Inc. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 [2007] ). Although plaintiff alleges that its contractor was unable to construct a tower crane in accordance with its contract because of defendants' refusal to remove a sidewalk bridge that encroached five feet onto plaintiff's premises, plaintiff does not allege that defendant procured a breach of contract by plaintiff's contractor ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424–425, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). Contrary to plaintiff's contention, defendants may raise this argument on appeal even though it was not relied upon by the motion court ( see Matter of American Dental Coop. v. Attorney–General of the State of N.Y., 127 A.D.2d 274, 279 n. 3, 514 N.Y.S.2d 228 [1st Dept.1987] ).
The motion court also correctly dismissed plaintiff's prima facie tort claim. The requisite elements for a cause of action sounding in prima facie tort are (1) the intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal ( see DeMicco Bros. Inc. v. Consolidated Edison Co. of N.Y., Inc., 8 A.D.3d 99, 779 N.Y.S.2d 10 [1st Dept.2004] ). The “plaintiff [must] allege that disinterested malevolence was the sole motivation for the conduct of which [he or she] complain[s]” ( Epifani v. Johnson, 65 A.D.3d 224, 232, 882 N.Y.S.2d 234 [2d Dept.2009]. [internal quotation marks and citation omitted] ). Here, plaintiff's argument that defendants were motivated by an intent to delay the construction of plaintiff's hotel which would compete with defendants' hotel business negates the requirement of acting with disinterested malevolence ( see Benton v. Kennedy–Van Saun Mfg. & Eng'g Corp., 2 A.D.2d 27, 29, 152 N.Y.S.2d 955 [1st Dept.1956]; see also Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983] ).